Office of Special Counsel: Actions Needed to Improve Processing of Prohibited Personnel Practice and Whistleblower Disclosure Cases
Fast Facts
To help ensure fairness in federal employment and personnel practices, the Office of Special Counsel reviews complaints from federal employees and applicants. In light of the agency's growing backlog of prohibited personnel practices and whistleblower disclosure cases, we looked at its case review processes.
We found several areas for improvement, including:
inconsistent staff training
unclear guidance for reviewing cases
OSC's lack of an independent review process for cases brought against it
We made a number of recommendations that could help improve OSC’s case management.
The median number of days to close all prohibited personnel practice and whistleblower disclosure cases, fiscal years 2011 to 2016
Line graph showing PPP cases took 97 days to close (up from 82); whistleblower disclosure cases took 29 days (up from 10)
Highlights
What GAO Found
Between fiscal years 2011 and 2016, the number of prohibited personnel practice (PPP) and whistleblower disclosure cases the Office of Special Counsel (OSC) received from employees of other federal agencies increased by 66 percent. Although the number of cases OSC closed increased by 62 percent during this period, the pace at which cases were closed did not keep pace with the number of cases received. As a result, the backlog also grew. OSC closed the vast majority of cases it received for various reasons, including a lack of sufficient evidence or lack of OSC jurisdiction.
Trends in PPP and Whistleblower Disclosure Cases, Fiscal Years 2011 to 2016
OSC's processing time increased for both types of cases from fiscal year 2011 to 2016, but the time for processing whistleblower disclosure cases experienced a significantly greater increase, from a median of 10 days to 29 days. Because processing times for whistleblower disclosures include the time that agencies take to conduct investigations and respond to OSC, they can be significant, especially if an agency requests an extension from OSC for additional time. GAO found that in fiscal year 2016, OSC approved on average 2.7 extensions per whistleblower referral, and that the average time to process these cases was 1.8 years. However, OSC does not provide whistleblowers specific information on timelines for agency responses to OSC referrals; as a result these individuals may not know how long the process could potentially take.
OSC's process for reviewing and referring allegations submitted by its own employees includes the involvement of officials and staff. This involvement was identified as a key concern by OSC employees. Specifically, 17 of the 87 OSC employees who responded to GAO's survey reported that they considered filing internal allegations against another OSC employee but chose not to do so in part because they feared losing anonymity, feared management reprisal, or were uncertain how to file an internal OSC complaint. Congress recently enacted statutory changes to provide additional safeguards to OSC employees who file internal complaints, including establishing an agreement with an agency inspector general to review internal OSC cases. However, OSC has not yet fully implemented such an agreement.
Why GAO Did This Study
OSC is responsible for safeguarding the merit system in federal employment by protecting employees and applicants, including whistleblowers. Consequently, OSC must ensure its case processes are adequate to protect the federal workforce, including its own employees.
GAO was asked to review OSC case processes and procedures for whistleblower disclosures and PPPs. For both types of cases, this report among other things (1) examines trends in cases received and closed from fiscal year 2011 to 2016, (2) examines timeliness of cases closed from fiscal year 2011 to 2016, and (3) assesses the extent to which safeguards are in place for OSC employees who make allegations.
GAO reviewed OSC case guidance, processes, controls, and the latest available OSC data from fiscal year 2016. GAO also assessed whether OSC's processes adhered to Standards for Internal Control in the Federal Government; and surveyed and interviewed OSC employees.
Recommendations
GAO is making seven recommendations, including that OSC communicate timelines to whistleblowers and finalize a time frame for obtaining an independent internal review process for OSC employees. OSC agreed with GAO's recommendations.
Recommendations for Executive Action
| Agency Affected | Recommendation | Status |
|---|---|---|
| Office of Special Counsel | The Special Counsel should review and revise as appropriate, its policy for agency extension requests. (Recommendation 1) |
OSC is revising its practice of granting extensions when the agency provides a plausible explanation for the delay. OSC will be informing agencies at the outset of the referral that, with few exceptions, extension requests are less likely to be granted. OSC will also be communicating that failure to produce an investigative report within the statutory timeframe will result in notification of the agency's failure to the President and congressional committees under 5 U.S. C. 1213(c) (4). This new practice is reflected in OSC's updated (April 21, 2021) standard operating procedures for the OSC Disclosure Unit.
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| Office of Special Counsel | The Special Counsel should communicate expected processing timelines to whistleblowers. (Recommendation 2) |
OSC has incorporated explicit language in its acknowledgement letters to whistleblowers that investigations may exceed the statutory timeframe. OSC has also now implemented a standard operating procedure of adhering to the 45-day timeframe for making a substantial likelihood determination under 5 U.S.C. 1213(b). According to OSC, it has revised its acknowledgement letters to whistleblowers to reflect that OSC expects to make a referral determination within 45 days. OSC provided GAO with copies of acknowledgement letters sent to all filers submitting a disclosure under 5 U.S.C. ?1213 which stated OSC's intent to adhere to the 45-day timeframe.
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| Office of Special Counsel | The Special Counsel should develop, document, and implement case processing procedures for OSC's Complaints Examining Unit, including procedures for how cases are prioritized, how to take favorable actions, how to balance obtaining favorable actions with meeting staff productivity expectations, and how cases should be reviewed by supervisors. (Recommendation 3) |
According to OSC, when the agency merged the former Complaints Examining Unit with the Investigations and Prosecution Division, OSC drafted two comprehensive documents memorializing standard operating procedures for how the agency handles Prohibited Personnel Practice cases: the Case Processing Guidelines and the Investigation Handbook. OSC provided GAO with copies of these handbooks on May 27, 2021. Together, these materials explain the procedures for prioritizing cases, obtaining favorable actions, and managing cases through targeted milestones. The documents also indicate when review by supervisors is required.
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| Office of Special Counsel | The Special Counsel should identify and implement additional controls and tools needed to ensure closed case files can be tracked and located efficiently. (Recommendation 4) |
According to OSC, on February 1, 2021, OSC's electronic case management system (eCMS) became OSC's official record keeping system for all case files. They explained that each case in eCMS has a "Documents Tab" where all records are stored and maintained. In addition, eCMS has a "Records Management Tab" that will help OSC's Records Management Team properly retain and transfer case files. For instance, each case file has multiple fields for case file format (electronic or hard copy), retention (temporary or permanent), schedule, locations (987, 988, RMS), disposition date with instructions, transfer number, box number fields, FOIA, Litigation Holds, and a note section in eCMS. OSC told us it has launched an agency-wide annual records management training for all employees. The agency explained that this training entailed the National Archives and Records Administration's (NARA) core elements: the lifecycle of a record; the difference between temporary and permanent records; and managing email and share drive records.
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| Office of Special Counsel | The Special Counsel should develop, document, and implement a standardized training program for entry-level employees, across units. (Recommendation 5) |
According to OSC, the Special Counsel has instituted an approach to recruitment and retention of program staff that emphasizes engagement with all of OSC's programs rather than unit-specific staffing. According to an OSC official, the agency now only hires attorneys to process cases. The official explained that all newly hired attorneys will serve one-year rotations in the PPP, disclosure and Hatch Act units, each of which entails an initial training period in the respective program area. In addition, OSC has developed and implemented a twelve-hour PPP training program for all newly hired attorneys and legal interns, which includes a general introduction to all PPPs and OSC's jurisdiction, followed by focused training on retaliation/reprisal cases, hiring action cases, and other types of PPP allegations. Going forward, OSC officials said that new attorneys/interns will be aligned with senior examiners for additional on-the-job training.
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| Office of Special Counsel | The Special Counsel should finalize a time frame for completing work with the Council of Inspectors General on Integrity and Efficiency and agency Inspectors General to obtain a fully independent review process for internal OSC allegations. (Recommendation 6) |
OSC's agreement with CIGIE has expired and the agency has negotiated an agreement with the Inspector General of the Office of Personnel Management (OPM) to perform a fully independent review and investigation of internal OSC allegations. The one year agreement was completed and signed on August 28, 2018.
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| Office of Special Counsel | The Special Counsel should increase and clarify ongoing outreach to OSC employees regarding OSC's process for handling internal PPP claims or whistleblower disclosure allegations. (Recommendation 7) |
On March 28, 2018, the Special Counsel sent an email to every OSC employee informing them in detail of OSC's process for handling internal complaints and disclosures. Attached to the email was a copy of OSC's Directive 57, which sets forth OSC's internal complaints and disclosure process. In addition, OSC has updated the posters that are prominently placed throughout OSC's communal areas notifying OSC employees of their right to file complaints or disclosures and how to do so. Further, OPM's IG presented the new program for reporting internal OSC complaints directly to OPM IG at OSC's All Hands meeting in September 2018.
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